92 Decision Citation: BVA 92-22244
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-38 010 ) DATE
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THE ISSUES
Entitlement to service connection for diabetes mellitus.
Entitlement to an increased rating for a low back disorder
with right hip pain, currently evaluated as 20 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. L. Schwartz, Associate Counsel
INTRODUCTION
This matter came before the Board of Veteran's Appeals
(hereinafter the Board) on appeal from a rating decision of
October 1, 1990, from the Montgomery, Alabama, regional
office (hereinafter RO). The notice of disagreement was
received on November 29, 1990. The statement of the case
was issued on December 26, 1990, and a supplemental
statement of the case was issued on April 17, 1991. The
substantive appeal was received on June 10, 1991. The
appeal was docketed at the Board on July 30, 1991. The
appellant has been represented throughout his appeal by the
Disabled American Veterans, to which the file was referred.
That organization submitted additional written argument to
the Board on March 5, 1992, and the case is now ready for
appellate review.
It has been certified that the veteran had active military
service from August 1974 to August 1977.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts that the RO committed error in failing
to grant service connection for diabetes mellitus. He
contends that his first abnormal glucose reading was
obtained in service, and that that was the inception of the
disease. He argues that there is no clinical demonstration
of the disorder until 1986, because up until that time he
had the disease under control by employing dietary
measures.
Additionally, the veteran asserts that an increased rating
is warranted for his low back disorder, noting that he
experiences severe pain in his lower back, which radiates
into his right leg. The veteran states that he is unable to
walk or stand for long periods of time, and that he must
take daily pain medications.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C. § 7104
(1992), following review and consideration of all evidence
and material of record in the veteran's claims file, and for
the following reasons and bases, it is the decision of the
Board that the preponderance of the evidence is against both
of the veteran's claims in this matter.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. There is no evidence to show that diabetes mellitus was
incurred in or aggravated during active military service, or
at all proximate to service.
3. The low back disorder with right hip pain is manifested
by slight tenderness over the lumbosacral spine, with
forward flexion limited to 70 to 80 degrees, backward
extension limited to 20 to 30 degrees, and rotation limited
to 20 to 30 degrees, all with pain and muscle spasm.
CONCLUSIONS OF LAW
1. Diabetes mellitus was not incurred in or aggravated by
military service, nor may it be presumed to have been
incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113,
5107; 38 C.F.R. § 3.303(d).
2. An evaluation greater than 20 percent for a lower back
disorder with right hip pain is not warranted. 38 U.S.C.
§§ 1155, 5107; 38 C.F.R. §§ 4.10, 4.40, 4.45, Part 4, Code
5295.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
We note that we have found that the veteran's claim is
well-grounded within the meaning of 38 U.S.C. § 5107(a).
That is, we find that he has presented a claim which is
plausible. We are also satisfied that all relevant facts
have been set forth before the Board. All identified
medical records have been requested and obtained. Thus, no
further assistance to the veteran is required to comply with
the duty to assist the veteran mandated by 38 U.S.C.
§ 5107(a).
1. Entitlement to service connection for diabetes mellitus.
In order to establish a claim for service connection on a
direct basis, the evidence must demonstrate that the
disorder in issue was first manifested in service, or can
otherwise be related to service. 38 U.S.C. § 1110;
38 C.F.R. § 3.303(d).
As noted above, it has been contended by the veteran that
his first abnormal glucose reading was in service, and that
this was the inception of his diabetic condition. In order
to fully evaluate this contention, this section of the Board
has requested a medical opinion on the record from W.O.B.,
Jr., M.D., Diplomate, American Board of Internal Medicine,
Medical Adviser to the Board. This opinion was rendered on
May 18, 1992.
Upon a review of the veteran's service medical records, this
requested opinion reveals that on August 22, 1975, a
urinalysis during service was three plus positive for
glucose. Subsequent repeated urinalyses were all negative
for glucose. Because of the three-plus glycosuria, a
glucose tolerance test was performed on January 21, 1976,
with the following values in milligrams percent: 94 fasting
blood sugar; 180 at 1/2 hour; 150 at 1 hour; 115 at 2 hours;
86 at 3 hours. Urine test for glucose to correspond with
those readings were: Negative fasting; trace at 1/2 hour; 4
plus at 1 hour; 2 plus at 2 hours; trace at 3 hours. There
were no signs or symptoms of diabetes mellitus in the
veteran's service medical records.
Based on this clinical data, Dr. B. concluded that the
glucose tolerance test during service was within normal
limits, thereby ruling out diabetes mellitus at that time.
In fact, this opinion set forth the determination that
"renal glycosuria," and not diabetes mellitus, was
responsible for the glucose found in the veteran's urine,
which occurs at normal blood glucose levels in the presence
of this disorder. In support of this opinion, Dr. B. quoted
from a reliable medical authority as follows:
In 1979 the National Diabetes Data
Group of the National Institutes of
Health provided revised criteria for
the diagnosis of diabetes dollowing a
challenge with oral glucose:
1. Fasting (overnight): Venous plasma
glucose concentration greater than 7.8
mmol/L (140 mg/dl) on at least two
separate occasions.
2. Following ingestion of 75 G of
glucose: Venous plasma glucose
concentration greater than 11.1 mmol/L
(200 mg/dl) at 2 hours and on at least
one other occasion during the 2 h test;
i.e., two values greater than 11.1
mmol/L (greater than 200 mg/dl) must be
obtained for diagnosis.
Foster, D.W., Diabetes Mellitus, in Harrison's
Principles of Internal Medicine, (12th ed.1991),
1739.
In normal persons glucose is present in
the glomerular filtrate at a
concentration equal to that in plasma
water and is reabsorbed through the
proximal renal tubule by
sodium--dependent,
phlorizin--inhibitable transport
process. Reabsorptive capacity exceeds
normal plasma glucose concentration.
Thus, glucose does not appear in the
urine until the threshold for
reabsorption is reached. The plasma
concentration at which filtered glucose
begins to escape proximal tubular
reabsorption is usually around 10 mmol/L
(200 mg/dl). Ibid. 1881.
Additionally, we note that the veteran's Separation
Examination Report indicated that "sugar" was normal.
Therefore, without clinical confirmation of diabetes in
service, and in light of the above referenced medical
opinion, we do not find that the one elevated glucose test
value is sufficient to establish inservice onset of diabetes
mellitus. Therefore, service connection on a direct basis
is not warranted.
Service connection may also be granted on a presumptive
basis, if it can be shown that the disorder manifested to a
degree of at least 10 percent during the first post-service
year. 38 U.S.C. §§ 1101, 1112, 1113.
The veteran's first Department of Veterans' Affairs (VA)
examination report, dated in November 1978, revealed a
fasting blood sugar of 154 mg, and no diagnosis of diabetes
mellitus was made at that time---which we note is consistent
with the above referenced medical authority. Thereafter,
the record discloses that the first clinical evidence of
treatment for diabetes is in 1986, nearly 9 years after the
veteran's discharge from service. On April 20, 1990, the
veteran was examined by a private physician whose report
indicated a fasting blood sugar level of 210 mg percent and
that the veteran was maintained on a diabetic diet and oral
antidiabetic medication. Although we note the veteran's
contention that there is no clinical evidence of diabetes
during the first post-service year because he controlled the
symptoms with dietary measures, we note that there is no
affirmative corroboration of this contention. There are no
treatment records revealing dietary counseling, nor reports
of any laboratory values that would at all suggest a need
for dietary controls.
Thus, based on our review of all of the evidence of record,
with emphasis on that discussed above, we find that service
connection on a presumptive basis is not warranted.
To conclude, without clinical evidence of inservice
treatment or diagnosis, beyond an isolated laboratory value,
or evidence of a pertinent presence during the first
post-service year, service connection on either a direct or
presumptive basis is not warranted.
2. Entitlement to an increased rating for a low back
disorder with right hip pain, currently evaluated as
20 percent disabling.
The percentage rating assigned by the rating schedule
represent, as far as can practicably be determined, the
average impairment in earning capacity resulting from such a
disability. 38 C.F.R. § 4.1. More particularly, the
veteran's disability is rated according to the diagnostic
criteria found at Diagnostic Code 5295. Pursuant to this
Code, a 20 percent disability rating requires evidence of
muscle spasm on extreme forward bending, loss of lateral
spine motion, unilaterally, in a standing position. A 40
percent rating requires a demonstration of a severe
disability, with listing of the whole spine to the opposite
side, a positive Goldthwaite's sign, marked limitation of
forward bending in a standing position, loss of lateral
motion with osteo-arthritic changes, or narrowing or
irregularity of joint space, or some of the above with
abnormal mobility on forced motion.
This assessment also takes into account the concept of
functional loss due to pain, or otherwise, pursuant to
38 C.F.R. §§ 4.10, 4.40, 4.45. Thus, where there is pain
associated with range of motion in a joint, this painful
movement must be considered a functional loss due to pain
when evaluating the disability.
In arriving at the decision herein, the Board has taken into
consideration the complete history of the veteran's back
disorder. Service connection was originally granted in an
April 19, 1979, rating action, based on the veteran's
service medical records, which were noted to reveal several
instances of treatment for low back pain, although no injury
was ever confirmed. A noncompensable evaluation was
assigned based on a November 1978 official examination
report which was noted to indicate that the veteran's low
back and hip were clinically normal, although, based on the
veteran's complaints, a diagnostic impression of mild low
back pain and right hip pain was rendered.
The private treatment records in evidence reveal only one
instance of treatment for low back pain, which was diagnosed
as low back pain, and pain medication was prescribed.
The July 1990 official examination report noted slight
tenderness over the lumbosacral spine. Thoracolumbar spine
was reported to flex forward to about 70 to 80 degrees, and
that any further movement was limited by pain. Extension
backward was 20 to 30 degrees, and rotation was limited to 20
to 30 degrees. All movements were noted to be associated
with pain, and palpable muscle spasm was observed on the
right. The veteran was noted to slightly favor his right
lower extremity while ambulating. Toe and heel walking was
assessed as being performed fairly well. Slightly decreased
pinprick sensation was noted in the posterior aspect of the
right thigh and lateral aspect of the right leg and foot,
although no abnormality was indicated on an electrodiagnostic
study of the veteran's lower spine. Additionally, x-ray
study of the lower spine and right hip was intrepreted as
normal.
We have carefully reviewed all of the evidence outlined
above, along with the veteran's contentions. However, we
must conclude that the record does not demonstrate a
disability which approximates a "severe" impairment, either
as specifically defined under the applicable Diagnostic Code
involved, nor under the more general regulatory provisions
stipulating that an analysis of functional impairment must be
incorporated into the disability assessment. The limitation
of motion, although associated with pain, is not severe in
nature, and neither x-ray nor nerve conduction studies
confirmed the radicular pain complained of by the veteran.
Moreover, the functional impact on the veteran's gait is
described as "slight" as is the decrease in pinprick
sensation.
Therefore, absent findings consistent with the diagnostic
criteria for a "severe" disorder, or other findings
indicative of a severe impairment, the assignment of an
evaluation in excess of 20 percent is not warranted.
We have also considered the provisions of 38 C.F.R.
§ 3.321(b)(1) regarding the assignment of extraschedular
evaluations. We find this provision to be inapplicable to
the case before us because the disability picture is not
exceptional or unusual, with such related factors as marked
interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards.
In conclusion, we find that the preponderance of the evidence
is against both of the veteran's claims in this matter.
ORDER
Entitlement to service connection for diabetes mellitus is
denied.
Entitlement to an increased rating for a low back disorder
with right hip pain is denied.
!L507 Department of Veterans Affairs Seal and Signature
Lines!
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
C. P. RUSSELL
JACK W. BLASINGAME
*38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.